Collecting Occurrence Evidence

What is Evidence?

Evidence is something that furnishes or tends to provide proof of something. A more legal definition is that evidence is all legal means, exclusive of mere argument, which tends to prove or disprove any matter of fact, the truth of which is submitted to investigation.

The Standard of Evidence

In many societies, there is a clear distinction between the certainty of evidence required in criminal and civil cases. Where a person may be subject to punishment, particularly imprisonment (or worse), the burden of proof needed is often “beyond a reasonable doubt.”

In civil cases, a less dense level of proof “on the balance of probabilities” is the standard required in many jurisdictions. In formal tribunals examining marine casualties, this latter level of evidence would generally be adopted.

The task of a marine casualty investigator, responsible for determining the circumstances and causes of a casualty, is to collect all evidence and analyse its value. All evidence obtained must be properly investigated, and evidence is not discarded just because a piece of evidence does not fit some preconceived theory.

An investigator should adopt the same principle as the civil burden of proof. Not being a legal expert, this may sometimes be difficult to judge. The final question is, has the investigator treated the evidence fairly and professionally?

Types of Evidence

While not essential, it can be useful for an investigator to have some idea of the kind of evidence and some sense of their relative value in establishing a reasonable level of proof. The different types of evidence are:

Direct or Real Evidence

Physical things, evidence in the form of the item itself. A broken pipe, a failed flange, a broken anchor chain, etc. Often real evidence cannot be disputed and is very valuable in proving facts.

Personal Evidence

What the investigator is told by the witnesses, the record of the interview. The value of personal evidence depends on the quality of the witness and the ability and skill of the investigator/interviewer. If signed and witnessed, the written transcript or the tape may become documentary evidence.

Documentary Evidence

Documentary evidence is evidence provided by a document such as certificates, logbooks, bell/movement books, letters, manuals, photographs, etc. And a "document" is anything on which signs or symbols have been marked and includes tape recordings, computer tapes or discs.

The document must be taken for what it is: A safety certificate is a document attesting that a surveyor signed the certificate to say the equipment met the required standard. It does not mean that the surveyor examined the equipment or that the equipment remained to standard. Similarly, a logbook is a record of what was written, rather than what happened.

Original documents are of far higher value since photocopies can be tampered. Original records, written at the time, are far more valuable than fair copies (like the deck log and the mate's fair copy).

Investigators should always quote original documents and satisfy themselves that any copies they make or notes they take are accurate. Original documents are useful but not infallible.

For formal investigations, original documents are preferred at all times. It would be a decision for the judge/board as to whether or not the inquiry would accept photos or other copies.

Prima Facie Evidence

At first appearance, the evidence is sufficient to establish a fact in the absence of any evidence to the contrary. If two ships collide, there is "prima facie" evidence of a breach of the Collision Regulations, if a ship sinks there is "prima facie" evidence that the ship was unseaworthy.

Circumstantial Evidence

A fact from which an investigator may reasonably and logically assume the existence of a further fact relevant to the incident.

Circumstantial evidence is indirect or presumptive evidence showing a strong connection between evidence and the incident. A trace of ship's paint on a fishing boat is strong circumstantial evidence that the ship matched with that paint was in contact with the fishing vessel.

Circumstances equally capable of another reasonable explanation is of limited value unless reinforced by other evidence. In investigations, circumstantial evidence may, in itself, be of limited value, but may point the way for further inquiry.

Hearsay Evidence

Evidence through a third party – "second-hand" evidence. Under certain jurisdictions, "hearsay" evidence is not relevant in criminal or other judicial proceedings. In a technical inquiry, such evidence may be relevant, but it should always be affirmed to the maximum extent possible. It is particularly true where grudges between parties may exist or where somebody may have a particular interest.

Accident reports, based on unsworn evidence and documents which were seen by the investigator but not produced, are hearsay and may not be admissible in a formal/court proceedings.

Expert Evidence

Given by a person skilled and experienced in a specific professional or technical area, able to provide evidence based on his/her knowledge of facts reported to him/her or discovered by him/her by tests, measurements, or similar means.

The reports of tests on the ship's equipment, or reports on paint analysis, etc., is expert evidence. Expert evidence is only as good as the expert who gives it. In an adversarial court, much time can be taken with testing an expert witness.

Collecting Occurrence Data

Gathering Initial Informations

After a casualty, there are sources of information that may be used before even going to the scene of the accident. Obtaining that kind of data and information can help the investigator establishing crucial general information about the situation. Those sources are:

Gathering Data In the Field

What witnesses tell investigators can be the most crucial part of the information received and may be responsible for the direction taken by the investigation. Wherever possible, what an investigator is told should be tested against other evidence, especially against real and documentary evidence. Real and documentary evidence should be collected, by acquiring objects or documents, or by copying, recording, or photographing.

It is essential that evidence is accounted for from the time it is acquired until the investigation is complete, and that the evidence is not tampered. Correct and proper handling of evidence gives credibility to the investigation. In most cases, the ship continues in service, and copies of documents will have to be made, the Master signing each copy to indicate that each is an exact copy.

Taking copies of ship's charts can be a problem and will depend on the investigator's powers under national legislation. Where there is no power to bring original documents, or even if there is, investigators should have an up to date chart to leave on the ship if they remove the ship's chart. If there is any suspicion that information has been removed from a written document, a forensic examination will often reveal the text.

Data recorded automatically, such as engine movements, course recorder traces, and cargo/stability readouts, are competent evidence. GPS receivers are generally programmable, and accessing the information can be very important. Certain modern radars have replay facilities.

Photographs are invaluable as evidence, during analysis, and for illustrating reports. Cameras should have a date time code. Video cameras are particularly useful, allowing playback as often as necessary to review a scene and make sure nothing is missed.

Notebooks remain the investigator's most useful tool, they are useful in interviews, for sketching, for recording measurements, for making statements and having them countersigned, for allowing an investigator to set down his plans and questions for forthcoming interviews.

Take Notes, Photograph, Sign, Date, and Seal

Handheld tape recorders are useful for recording interviews, investigator’s observations, and sound. Tamper-proof tapes are available, so is fast dubbing equipment so that tapes can be copied and copies sent to interviewees. Today we have devices, such as a smartphone, that can serve as a recorder, camera, and notebook all in one - but the functions are still the same. The investigator must be able to take notes and can’t rely on applications or functions that need internet access. There are three golden rules for collecting direct evidence:

Guard against contamination, ensure that the knife or scraper used for obtaining samples are scrupulously clean. Direct or real evidence varies from paint samples to wires and machinery parts. Paint samples and books for forensic testing should be placed in clean, sterile plastic bags. Larger bins might be required for bigger samples, and on occasion, it might be necessary to transport samples, unsecured by covering. An appropriate note should be made in the investigator’s notebook. Substances that give off hydrocarbons should be secured in clean sample tins, securely capped. Hydrocarbons can “breathe” through plastics.

Samples transported for testing or analysis should have adequate documentation enabling tracing if necessary, of where and by whom the samples were received and who unsealed and resealed containers. Investigation units should not hesitate to seek specialist or expert advice to assist in determining the causes of an accident, and to lend credibility to an investigation.

Most nautical investigators would be able to comment on stability if this was an issue, but an endorsement by a qualified naval architect would enhance credibility. Other helpful experts could be doctors, psychologists, and metallurgists, and further assistance might be available from police and persons known from or used by air accident investigation bodies.

Shipowners located outside a country of investigation may be reluctant to release information, and a request to the investigating authority in the shipowner’s flag State might result in cooperation. Class societies will not usually release information without an owner’s consent. Where a society has issued a certificate on behalf of an administration, the relevant information regarding that certificate might be available.